October 19, 2020

Volume X, Number 293

October 19, 2020

Subscribe to Latest Legal News and Analysis

TCPA Litigation Update — No Knowledge, No Problem

While the U.S. Supreme Court’s ruling in Barr v. AAPC and its decision to grant certiorari in Facebook, Inc. v. Duguid, et al. have rightfully been grabbing headlines, defendants continue to make strides with helpful developments in TCPA fax litigation. The latest comes from the Sixth Circuit in Garner Props. & Mgmt., LLC v. Marblecast of Mich., Inc. [1]  

Garner Properties initiated the lawsuit after allegedly receiving fifteen faxes, one of which it attached to its complaint and that referenced cabinets made by Woodmark Corporation as being available through Marblecast of Michigan at a discount. Though Woodmark knew nothing about the faxes, Garner named it along with Marblecast as defendants. Woodmark responded with a motion for summary judgment and asked the trial court to put the brakes on the case because of its lack of knowledge.  

As the Sixth Circuit explained, Woodmark and Marblecast entered into a pre-lawsuit marketing agreement authorizing Marblecast to advertise a line of cabinets made by Woodmark. Though the agreement provided Marblecast would “use its best efforts to promote, maintain and increase sales of Products,” it apparently did not authorize faxing. 

Relying on the regulatory definition of “sender,” Garner took the position that Woodmark — despite not having a clue a fax had been sent — qualified as a sender because the fax was sent on its “behalf” and referenced its “goods.” Pointing to its decision in Health One Med. Ctr. v. Mohawk, Inc. [2] and the lower court’s reasoning, the Sixth Circuit succinctly disagreed. Quoting the district court, it noted: 

Given American Woodmark’s clear lack of knowledge and involvement — and the evidence showing that Marblecast sent the Fax to advertise its own business and would have sent it even had it never contracted with American Woodmark — no reasonable juror could find that American Woodmark ‘sent’ the Fax, as that term is defined by the TCPA . . . .

Building on Health One, the Sixth Circuit clarified that sender liability turns on knowledge: “In short, some level of knowledge that an unsolicited fax has been sent is required for an entity to qualify as a sender under the TCPA.” Given that Plaintiff failed to show any knowledge, judgment was affirmed.  


Garner Props. & Mgmt., LLC v. Marblecast of Mich., Inc., No. 19-1802, 2020 U.S. App. LEXIS 20071 (6th Cir. June 26, 2020).

Health One Med. Ctr. v. Mohawk, Inc., 889 F.3d 800 (6th Cir. 2018).

©1994-2020 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume X, Number 209


About this Author

Joshua Briones Litigation Lawyer Mintz
Member / Managing Member, Los Angeles Office

Joshua, Managing Member of the firm’s LA office, is a highly experienced trial lawyer with a national practice. He has received awards and national recognition for his innovative approach and specializes in high-stakes, bet-the-company litigation. He represents clients in such industries as financial services, building products, retail, pharmaceuticals, automotive, professional sports, food and beverage, petroleum, chemical manufacturing, health care, high technology, and higher education. He frequently publishes and lectures before national and local bar and industry...

Esteban Morales, Mintz, Class Action Defense Lawyer, financial services litigation

Esteban is an experienced litigator whose practice is principally focused on class action defense and financial services litigation. Esteban has successfully defended both small and large corporate clients targeted in class action suits alleging violations of the Telephone Consumer Protection Act, California’s Unfair Competition Law, and California’s Invasion of Privacy Act. Results include dismissals at the pleading stage and without any discovery following aggressive defense strategies. In addition to defending class actions, Esteban has represented clients in real estate, trust and estate, and securities disputes. He is also a member of the firm's Sports Law Practice.

Before joining the firm, Esteban served as in-house Counsel for a major broker-dealer with thousands of registered representatives stationed throughout the country. In his capacity as an in-house attorney, Esteban litigated cases, routinely interfaced with insurance carriers and brokers, managed outside counsel, and advised on regulatory matters.